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investor-state disputes | ISDS

Investor-state dispute settlement (ISDS) refers to a way of handling conflicts under international investment agreements whereby companies from one party are allowed to sue the government of another party. This means they can file a complaint and seek compensation for damages. Many BITs and investment chapters of FTAs allow for this if the investor’s expectation of a profit has been negatively affected by some action that the host government took, such as changing a policy. The dispute is normally handled not in a public court but through a private abritration panel. The usual venues where these proceedings take place are the International Centre for Settlement of Investment Disputes (World Bank), the International Chamber of Commerce, the United Nations Commission on International Trade Law or the International Court of Justice.

ISDS is a hot topic right now because it is being challenged very strongly by concerned citizens in the context of the EU-US TTIP negotiations, the TransPacific Partnership talks and the CETA deal between Canada and the EU.

Telefonica files complaint to ICSID over Colombia fine
23-Feb-2018 Telecompaper
Telefonica has filed an arbitration complaint with the World Bank’s ICSID against the Colombian arbitration fine for breaching a government contract for mobile services.
Cooke Aquaculture Pacific urges lawmakers to consider jobs, science-based policy, fair and equitable treatment
23-Feb-2018 Cooke Aquaculture
Will seek NAFTA arbitration if ban on Atlantic salmon farming is approved.
API supports NAFTA modernization that retains strong protections for US investors
22-Feb-2018 Oil and Gas Online
Ongoing negotiations to modernize NAFTA must advance our role as a global energy leader by retaining US access to Mexico’s newly-opened oil and natural gas market and providing strong protections, including Investor-State Dispute Settlement.
US and Canada to drop ISDS from NAFTA. NZ should for TPPA
22-Feb-2018 Scoop
Canada and the US are set to agree on withdrawing the controversial investor-state dispute settlement (ISDS) mechanism from the North American Free Trade Agreement (NAFTA) between the US, Canada and Mexico.
Trudeau pushes controversial investor-state dispute settlement provision on trip to India
21-Feb-2018 Council of Canadians
Negotiations on a Canada-India FIPPA were launched in September 2004 and concluded in 2007, but the deal was never signed.
Kenya faces cases at International Centre for Settlement of Investment Disputes
21-Feb-2018 Standard Media
Kenya is facing cases at International Centre for Settlement of Investment Disputes (ICSID) with claims amounting to Sh334 billion.
Kazakhstan’s frozen billions sound alarm for sovereign funds
21-Feb-2018 Reuters
The case is one of several brought to courts in Europe by Moldovan businessman Anatolie Stati who is attempting to force the Kazakh government to pay up in a dispute about his energy investments in the oil-rich country.
Glencore, Randgold form group to challenge Congo law changes
19-Feb-2018 Bloomberg
Randgold is considering launching international arbitration if Congolese President gives his assent to the legislation.
Gambia gov’t spends two billion dalasis on arbitration cases!
19-Feb-2018 Freedom Newspaper
How can the Goverment risk billions of dalasis in arbitration costs, once more, with Africa Petroleum? What money will pay for this trial?
How international investment agreements have made debt restructuring even more difficult and costly
19-Feb-2018 South Centre
Inconsistencies and even contradictions have emerged in dispute settlement decisions, sometimes at the expense of public good, sovereignty and financial and economic stability.
Arbitrator: EMG due $1.03b from Egypt over canceled gas contract
19-Feb-2018 Haaretz
Decision comes six years after supplies were halted, forcing EMG shareholder Ampal into bankruptcy.
Civil society recommendations for the investment chapter of the revised EU-Mexico FTA
16-Feb-2018 S2B
The undersigned organisations take the position that it is advisable to break away from the fundamentally flawed and increasingly controversial ISDS system.
The EU - Indonesia CEPA negotiations
16-Feb-2018 TNI
We call on the EU and Indonesia to use the CEPA negotiations to design an investment chapter that prioritises equitable and sustainable development.
Sacrificing sovereignty and human potential in the name of economic growth
15-Feb-2018 Politheor
Why are countries so gripped in their quest for economic growth that they are empowering multinational corporations at the expense of their citizens?
Golf lawsuit threatens to shut down Friends of the Earth Croatia
13-Feb-2018 Friends of the Earth Europe
In September 2017, the investor filed a €500 million ISDS claim against the Republic of Croatia at an arbitration tribunal because the "state [had taken] away their development licences"
South Korea to seek investor protection measures in FTA talks with China
12-Feb-2018 Yonhap News Agency
South Korea’s trade ministry said Monday it will seek ways to better protect investor rights from arbitrary regulations when holding talks with China to expand the scope of the two countries’ free trade agreement (FTA) to the service and investment sector.
Global mining firms sue Kenya for Sh334bn compensation
8-Feb-2018 Business Daily
Global mining firms want Kenya compelled to pay Sh334 billion as compensation for cancelling their licences.
Beijing plans new mechanism for Belt and Road arbitration
8-Feb-2018 Asia Times
In a proactive move, China has plans under way to provide its own arbitration in any future commercial issues or disputes between the Belt and Road countries. The 68 countries and regions included in the Belt and Road Initiative (BRI) not only vary in economic strength but also require a stable trade environment with adequate legal safeguards.
Congolese mines minister mum on whether controversial new code has been made law
7-Feb-2018 Business Day
International mining companies, which include Randgold, Glencore and China Molybdenum, have said they will challenge the new law through international arbitration, and are lobbying Kabila not to sign it.
United in mixity? The future of the EU common commercial policy in light of the CJEU’s recent case law
7-Feb-2018 EJIL: Talk!
The European Commission reportedly proposed a model for the fast track ratification of trade deals that should be applied for the first time to the new trade agreements with Australia and New Zealand.